Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES - Hearing Officer’s conclusion that Petitioner refused to take the DUI breath test by failing to provide proper breath samples was not supported by competent, substantial evidence – “Low sample volume” breath samples met all the requirements set out by Rule 11D-8.002(13) defining Approved Breath Alcohol Test – Petition granted. Sharp v. Dept. of Highway Safety and Motor Vehicles, No. 02-4337 CI-88A (Fla. 6th Cir. App. Ct. Dec 20, 2002), cert. den,861 So.2d 32 (Fla. 2d DCA 2003).











                                                                                    Case No. 02-4337 CI-88A







            THIS MATTER is before the Court on a Petition for Writ of Certiorari, pursuant to Sections 322.2615 and 322.31, Florida Statutes, after the DHSMV Hearing Officer at a Formal Review Hearing sustained the suspension of the Petitioner’s driver’s license for a refusal to submit to a chemical test of his breath.

            On February 21, 2002, after the Petitioner was involved in a one-car accident, he was arrested for DUI [1] around 3:57 am and refused to submit to a chemical test of his breath at that time. About 40 minutes later, Petitioner changed his mind and agreed to take the test. At 4:41 am the first breath test sample was collected from Petitioner and the result was 0.238 grams of alcohol per 210 liters of breath (g/210L). At 4:47 the second breath test sample was collected from Petitioner and the result was 0.233 g/210L. Both results showed that there was a low sample volume and that the value printed was the highest obtained. The Breath Test Operator signed both the Operational Procedures Checklist and the Breath Test Result Affidavit, which show that the particular Intoxilyzer 5000 used in the test complied with the applicable Rules promulgated by the Florida Department of Law Enforcement, that the required procedures were followed, and that the test results were labeled “LSV” (low sample volume).

            On April 30, 2002, a Formal Review Hearing was held regarding the suspension of Petitioner’s driver’s license before a Hearing Officer of the Department of Highway Safety and Motor Vehicles. Petitioner and Respondent agree that the review was limited to documentary evidence. No witnesses were called. The Hearing Officer upheld the suspension of Petitioner’s driver license on the basis that he refused to give proper samples for the breath test. He denied Petitioner’s motion to invalidate the suspension that argued Petitioner did not refuse to take the test since “low sample volume” breath samples are valid samples.

            Pursuant to Section 322.2615(7)(b), Florida Statutes, it is the Hearing Officer’s role to determine by a preponderance of the evidence whether sufficient cause exists to sustain, amend, or invalidate the suspension. He is limited to a review of the following issues: (1) whether the arresting officer had probable cause to determine whether the Petitioner was driving while under the influence of alcoholic beverages or controlled substances; (2) whether Petitioner was placed under lawful arrest for violating FS 316.193; (3) whether Petitioner refused to submit to any such test after being requested to do so by a law enforcement officer; and (4) whether Petitioner was told that if he refused to submit to such a test, his privilege to operate a motor vehicle would be suspended for a period of one year or, in the case of a second or subsequent refusal, for a period of 18 months. The Hearing Officer is the trier of fact.     

            This Court’s scope of review of a Petition for Writ of Certiorari is limited to the determination of whether the Department’s actions: (1) accorded procedural due process, (2) observed the essential requirements of the law, and (3) were supported by competent, substantial evidence. Haines City Community Development v. Heggs, 658 So.2d 523 (Fla. 1995); Dep’t of Highway Safety & Motor Vehicles v. Porter, 791 So.2d 32 (Fla. 2d DCA 2001).

            This Court finds that the Hearing Officer’s conclusion that Petitioner refused to take the test by failing to provide proper samples is not supported by competent, substantial evidence.

            The Affidavit of Refusal, stating only that Petitioner refused to take the test at 3:57 am, refers to the time of the first refusal, although it is clear that the police permitted Petitioner to recant his first refusal and gave him a subsequent opportunity to take the test, in accordance with Larmer v. State, 522 So.2d 941 (Fla. 4th DCA 1988).

            In the Findings of Fact, the Hearing Officer found that there was an initial refusal followed 40 minutes later by Petitioner’s agreement to take the test. The finding that “Mr. Sharp refused to give proper samples” appears to be the basis for the Hearing Officer’s conclusion that the Petitioner refused to take the test. The documents in the record (specifically, the breath test affidavit, printout, and operational procedures checklist), however, clearly demonstrate that Petitioner did provide two breath samples consistent with an approved breath test as required by Florida Administrative Code Rule 11D-8.002(13) and regulated by Section 316.1932(1)(a)(2), Florida Statutes. Rule 11D-8.002(13) provides as follows:


(13) Approved Breath Alcohol Test – a minimum of two samples of breath collected within fifteen minutes, analyzed using an approved breath test instrument, producing two results within 0.020 g/210L, and reported as the breath alcohol level. If the results of the first and second samples are more than 0.020 g/210L apart, a third sample shall be analyzed. Refusal or failure to provide the required number of valid breath samples constitutes a refusal to submit to the breath test. Notwithstanding the foregoing sentence, the result(s) obtained, if proved to be reliable, shall be acceptable as a valid breath alcohol level.

            The documentary evidence shows that the two breath test results obtained from Petitioner at 4:41 and at 4:47 am were within the applicable range (0.020) and time limits (15 minutes) provided by the Administrative Rules. Despite the fact that the results read “low sample volume” and the law enforcement officer may have thought the test results were invalid, they met all the requirements set out by the Rule defining “Approved Breath Alcohol Test.” [2] See Mulligan v. State of Florida, Department of Highway Safety and Motor Vehicles, 9 Fla. L. Weekly Supp. 146 (7th Jud. Cir 2002) (Writ of certiorari granted in review of driver license suspension based on low sample volume breath test results that were in substantial compliance with administrative rules and statutes.).

                        This Court finds that Respondent’s findings and conclusions were not supported by competent, substantial evidence. It is therefore

            ORDERED that the writ of certiorari is granted.           

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ______ day of December, 2002.



                                                                                    NANCY MOATE LEY

                                                            CIRCUIT JUDGE, APPELLATE DIVISION



cc: Ronnie C. Crider, Esq., Bauer, Crider, Pellegrino & Parry, 1550 South Highland Ave., Suite C, Clearwater, FL 33756   


Rhonda F. Goodman, Esq., Enoch J. Whitney, General Counsel, 2515 WA. Flagler Street, Miami, FL 33135


[1] He was also charged with Resisting Arrest and cited for Careless Driving.

[2] In fact, low sample volume breath test results have been held admissible in a DUI case as an accurate reflection of the alcohol content of the defendant’s breath sample so long as the results were within 0.020 compliance of each other, as they are in this case. See State v Conyers, 2 Fla. L. Weekly Supp. 439 (11th Jud. Cir. 1994). Although this Court recognizes that the standards of proof are not the same in a DUI criminal proceeding and in a civil hearing on a suspension of a driver’s license, it has difficulty reconciling the fact that the same evidence of a LSV breath test result can be admitted in a criminal proceeding against the driver but is not considered a test result at all in a hearing on the suspension of the driver’s license.